568 P2D 986 - Anchorage v. McCabe

RABINOWITZ, Justice,

¶1with whom ERWIN, Justice, joins concurring.

¶2While I agree with the court’s disposition of this matter, I disagree with the court’s treatment of the “capacity to be assessed” issue. The majority reasons that since the Board of Adjustment was accorded full party status in Munroe v. City Council for City of Anchorage, 545 P.2d 165, reh’g granted and opinion modified, 547 P.2d 839 (Alaska 1976), it is capable of full party status in the instant case and has the capacity to be assessed attorney’s fees. I think it is necessary to examine those factors which set a zoning board apart from other quasi-judicial administrative boards and thus compel the decision that the zoning board in the case at bar should be assessed attorney’s fees.

¶3Many quasi-judicial administrative boards, such as the Workmen’s Compensation Board, are charged with adjudicating the rights of individual parties according to the terms of administrative law. However, the zoning board’s duties go far beyond determining the relative rights of the parties in quasi-judicial proceedings; the zoning board is granted a large degree of discretion to be exercised in the public interest. That discretion is particularly obvious in cases such as the one at bar where a party is seeking a variance or special exception to a zoning ordinance.1 The exercise of the zoning board’s discretionary authority may seemingly involve only a few individuals, but the impact of its decision may be felt by the entire community. In explaining its decision that the zoning board involved had sufficient party status to maintain an appeal from a lower court reversal of its decision, the Connecticut Supreme Court stated:

In some appeals from administrative boards the question at issue is of consequence only to certain parties who will be directly affected, as, for example, where the public utilities commission is called upon to apportion between a municipality and a railway company the cost of the construction of a highway bridge over a railway track. ... In other cases, however, there is a definite public interest to be protected. This is true, for instance, of many orders of the public utilities commission, and is particularly true with respect to zoning regulations. . While [zoning] boards have ordinarily no corporate existence as such but are merely agencies of the municipality, and while they have no direct interest in this litigation, it would be a logical conclusion that because of the function they perform they should represent the public interest entrusted to them in ap*995peals taken from their decisions.2 (citation omitted)

¶4Representing the public interest in appeals from its decisions may often imply justifying its decision. Because of the extent of its discretion, the zoning board has a far greater interest in attempting to uphold its decision than does a quasi-judicial administrative body like the Workmen’s Compensation Board and thus should be granted full party status. Given these factors, I conclude that it is appropriate for the zoning board to be accorded full party status and assessed attorney’s fees in the instant case.

¶5. In explaining the difference between the discretion exercised by an administrative agency in promulgating rules and adjudicating rights, one commentator has noted that when an agency is adjudicating rights, the discretionary power is more subtle.

[A]gencies engaged in adjudication may be enabled to exercise their discretionary powers to reach results which go far beyond, and which may even be quite at odds with the underlying legislative purpose. It is not meant to imply that agencies always stretch the legislative fabric. However, the freedom to exercise discretion in deciding individual cases on a basis of ad hoc adjudication may enable them at times to read new and unanticipated meanings into legislative language, when the agency heads feel that the accomplishment of their broad social purposes will be furthered thereby.

¶61. F. Cooper, State Administrative Law 33 (1965).

¶7The potential for variance from the stated purpose is even greater in situations like the "one at bar where a board is being requested to grant special exceptions to particular parties. In such circumstances it is appropriate to grant the board full party status and, when its decision is not upheld, to grant an award of attorney’s fees against it.

¶8.Rommeli v. Walsh, 127 Conn. 16, 15 A.2d 6, 9 (1940). Accord, Zimmerman v. Kramer, 29 Misc.2d 413, 217 N.Y.S.2d 438 (Sup.Ct.1961); Board of Adjustment v. Stovall, 147 Tex. 366, 216 S.W.2d 171 (1949). See generally Simpson v. Kennedy, 327 A.2d 763 (Del.Super.1974); Boyd & Usher Transport v. Southern Tank Lines, Inc., 320 S.W.2d 120 (Ky.1959).

BOOCHEVER, Chief Justice,

¶9dissenting.

¶10I do not believe that attorney’s fees should have been awarded against the City in this matter. When a city or administrative body actively participates in an appeal from its decision, it should be regarded as a party for the purpose of awarding fees. Where, however, it is a mere nominal participant, attorney’s fees should not be awarded either for or against it.1

¶11At the outset, the City of Anchorage heard the appeal from the Planning and Zoning Commission in a quasi-judicial capacity: On the subsequent appeal to the superior court, it was properly named as a party. If it had deemed that the public interest required it to advocate a particular position, the City could have actively participated in the appeal.2 Here, however, the City apparently decided that there were no significant municipal interests justifying opposition to the appeal. The only party who actively disputed the contentions raised by the McCabes was Mr. Carlstrom, who was primarily interested in the construction of the planned unit development. Under these circumstances, he was the one who lost on the appeal; and, in my opinion, the costs and attorney’s fees should have accordingly been awarded against him rather than the City.

¶12I also differ from the majority in regard to the court’s role in public interest litigation. The opinion seems to take the position that such litigation should be actively encouraged. In my view, our function is not to encourage litigation of any sort. On the other hand, I believe that we should strive to prevent our courts from becoming inaccessible, as a practical matter, to those who seek to vindicate rights shared by the public. This concern is similar to that evinced by the Supreme Court in Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 81 S.Ct. 964, 19 L.Ed.2d 1263 (1968). The Court noted that few parties would be in a position to advance the public interest if successful plaintiffs were routinely forced to bear their own attorney’s fees. For similar reasons, I agree that in appropriate cases, it is proper to deny an award of fees against an unsuccessful plaintiff.3 Moreover, where a sufficient public interest is involved/it may be appropriate to award full attorney’s fees to a successful plaintiff to the extent that they are reasonable.

¶13In any “public interest” litigation, the plaintiff must also have some direct and immediate interest.4 Moreover, in most litigation, a party can usually contend that his position represents some public interest. For example, a plaintiff in an automobile collision case can say that he is promoting the public interest in preventing negligent driving. Although specific standards for *996determining whether the requisite public interest exists have not been articulated, a few general principles do emerge from those cases where the issue has been raised.

¶14Where the sums at stake in the controversy are sufficiently large to prompt suit regardless of the public interest, an award of attorney’s fees against the losing party has been found reasonable. In such cases, the concern that fear of expenses will significantly deter citizens from litigating questions of general interest to the community is inapplicable. Mobil Oil Corp. v. Local Boundary Comm., 518 P.2d 92, 109 (Alaska 1974). Similarly, questions which primarily affect the rights of the parties before the court lack the requisite public character to prohibit an award, even if some public or constitutional issues are involved. Munroe v. City Council for the City of Anchorage, supra (challenge to denial of application for special exception to applicable zoning ordinances); Kelly Supply Co., Inc. v. City of Anchorage, 516 P.2d 1206, 1211 (Alaska 1973) (challenge to refusal to permit nonconforming use).

¶15In each case, the court must weigh the private motivation for the lawsuit against the extent of the public interest involved. Here, as owners of property adjoining the proposed development, the McCabes had a significant personal interest. While their interest was doubtlessly shared by others in the neighborhood, and to some extent generally by others in Anchorage, it hardly manifests the same degree of public importance as the residency requirement for candidates for political office,5 prohibiting racial discrimination in restaurants6 or enforcing compliance with federal statutes in construction of highways.7 As in Munroe v. City Council for the City of Anchorage, the private property interests of the McCabes appear the paramount motivation for the lawsuit, while the public interest seems of somewhat marginal significance. Accordingly, I would remand for a redetermination of reasonable attorney’s fees sufficient to partially compensate plaintiff.8

¶16. For example, it is customary not to assess fees against the Alaska Workmen’s Compensation Board when it does not actively participate in appeals from its awards although it is named as a party. See, e. g., Alaska Workmen's Compensation Board v. Marsh, 550 P.2d 805 (Alaska 1976); Vetter v. Alaska Workmen’s Compensation Board, 524 P.2d 264 (Alaska 1974).

¶17. Cf. Munroe v. City Council for the City of Anchorage, 545 P.2d 165, opn. on rehearing, 547 P.2d 839 (Alaska 1976).

¶18. See Gilbert v. State, 526 P.2d 1131 (Alaska 1974).

¶19. Sierra Club v. Morton, 405 U.S. 727, 732-36, 92 S.Ct. 1361, 31 L.Ed.2d 636, 641-42 (1972).

¶20. Gilbert, supra.

¶21. Newman v. Piggie Park Enterprises, Inc., supra.

¶22. La Raya Unida v. Volpe, 57 F.R.D. 94 (N.D.Cal.1972).

¶23. Malvo v. J. C. Penney Co., Inc., 512 P.2d 575 (Alaska 1973).

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